Retired judge in Unger ruling had long advocated overturning convictions

For more than three decades, a Maryland Court of Appeals judge argued that the state's jury instructions were fundamentally unfair, writing blistering dissenting opinions.

But it was only in retirement — called back to hear the case of convicted cop killer and serial escape artist Merle Unger — that Judge John C. Eldridge found himself writing for the majority, penning a decision that has already seen 13 convicted murderers set free and could lead to as many as 200 people getting new trials.

At issue was whether jury instructions before 1980 had left room for defendants to be convicted even in the presence of reasonable doubt, and whether defendants should get new trials if they had. The court found that they should, but Eldridge said the judges should have reached that conclusion years ago.

"My position is pretty consistent from 1980 on," Eldridge said in an interview.

Compared with other states," there is much less assurance that the defendant will be tried in accordance with law" in Maryland, he wrote in a 1980 decision..

That year, judges started instructing juries that the law required them to presume defendants innocent and find them guilty beyond a reasonable doubt. But people convicted under the old system did not get new trials.

Then, called out of retirement to hear the 2009 case, which was decided last year, Eldridge finally had his "I told you so" moment.

"This Court has not hesitated to overrule prior decisions which are clearly wrong," he wrote in the recent ruling. Eldridge even referred back to the dissenting opinion he had authored.

"It is clear," he wrote, that previous cases "were wrongly decided."

But the two judges who opposed the ruling questioned that conclusion, noting that the only difference was "the composition of the Court."

Retired Court of Appeals judges are regularly called back to hear cases if a sitting judge is unavailable or barred because of a conflict of interest, and the system is designed to prevent the chief judge from stacking the deck, Eldridge said.

The chief judge does, however, get to pick who writes the opinion. Eldridge referred questions about that process to former Chief Judge Robert M. Bell.

He could not be reached for comment.

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